We’ve heard a lot about artificial intelligence and machine learning this year, but there are still some tasks best undertaken by homo sapiens – particularly art, craft, design and other creative tasks.
If you are one of these courageous humans, battling the machines for commercial opportunities to provide your creativity in return for money, you should aim to avoid unnecessary disputes/problems by ensuring that you have a freelancer agreement in place.
Freelancer agreements, like freelancers, come in all shapes and sizes, but every contract for the provision of independent (i.e. non-employment) services should contain at least the following seven provisions.
- Term and termination – When do you start working, how long do you work for and when do you stop working? You need to know at the outset what obligations are being placed on your valuable time. You also need to know when and how to get out of the agreement if circumstances change or things go wrong.
- Services and Deliverables – Services are activities. Deliverables are materials. Don’t confuse the two. Be clear about what activities you will undertake (e.g. advise or consult on a creative project, coordinate a team, deliver a workshop etc.) and what materials you will deliver (e.g. a project report, a design document, training materials etc.). Be clear also about what materials are yours (e.g. the template materials that you may use with all clients i.e. your pre-existing materials) and what materials are the client’s (i.e. their pre-existing materials and any newly created materials you have been commissioned to provide).
- Price and payment terms – How much do you get paid and when do you get paid? This will depend on the nature and structure of the work you are agreeing to do e.g. you may agree a fixed fee with your client if the scope of the work is clear from the outset, whereas you may agree an hourly/daily rate if the scope of the work is not clear from the outset. You may ask for an up-front deposit for larger projects. You may ask for monthly or staged payments for long-running projects.
- Property rights – Tangible property is property you can see and sometimes touch (e.g. a piece of furniture). Intangible property is property you cannot see (e.g. the copyright or design rights in a piece of furniture). Don’t confuse the two. Be clear about who owns what. If you are commissioned to design and manufacture a bespoke piece of furniture, your client will presumably own that tangible property (since that is what they have paid for). But who will own the intangible property e.g. the copyright and design rights in that piece of furniture? The answer to the question is significant. If no, they can do whatever they want with the physical property (i.e. they can sell, rent, give away or destroy the physical piece of furniture), but they cannot make copies or adapted/modified copies based on the design of the original piece. If yes, they can do whatever they want with both the tangible and the intangible property (i.e. they can if they wish have 50,000 replicas of the original piece 3D printed and sold without paying you a penny). Think about whether or not you should be retaining your intangible/intellectual property.
- Confidentiality – What information, if any, should be kept confidential? In order to do your job, you may gain access to non-public information about your client’s business (e.g. you may be commissioned to undertake design work or photography in relation to a new product which has yet to be made public). Similarly, in order to do your job, your client may gain access to non-public information about your business (e.g. your confidential know-how and trade secrets, your secret processes and methodologies etc.). Be clear about any secret information that you don’t want disclosed, and understand your obligations regarding your client’s secret information that they don’t want disclosed.
- Data protection – Does your service involve the handling of information that identifies living people? If so, you are likely a data controller and/or a data processor within the meaning of the General Data Protection Regulation (GDPR). In either case, you will have specific obligations that you must comply with to ensure that the privacy rights of the people whose personal information you handle are protected. Be clear about whether you are a controller or process (or both) and set out the scope of your and your client’s obligations in your freelancer agreement.
- Warranties, indemnities and liability – Who takes responsibly for what and to what extent? If you provide materials as part of your services, you must take responsibility for whatever you provide (e.g. if you provide artwork, your client will want you to promise/warrant that the artwork provided is original and not infringing someone else’s copyright; similarly, your client will want you to shield/indemnify them if they get sued because of your infringement). The reverse is also true. If your client provides materials for you to work on as part of your services, they must take responsibility for whatever they provide (e.g. if they ask you to adapt the content on their website, you will want them to promise/warrant that the original content on their website is their own and not copied from somewhere else and/or infringing someone else’s rights; similarly, you will want your client to shield/indemnify you from liability if you get sued because of their infringement). Be clear about the extent of the liability you are prepared to accept. For example, if you are paid £1,500 to design a new logo, you don’t want to get sued for £1,500,000 if it turns out that you have inadvertently infringed someone else’s rights. Don’t accept liability that vastly outweighs the value of the contract and if possible insist that your liability is limited either to the value of the contract or to the threshold specified by your insurance policy (if you have one).
The above list is by no means exhaustive. Many other provisions are commonly found in freelance services agreement (e.g. provisions directing the process the parties must follow in the event of a dispute, provisions allowing/prohibiting subcontracting, provisions regulating/prohibiting working with competitors, and so on). However, if your agreement includes the seven core provisions listed above, you are off to a good start.
The overwhelming majority of disputes, problems and other issues that arise between freelancers and their clients arise either because there was no contract, or the contract was deficient. Therefore, avoid headaches by having a good template freelancer agreement in your arsenal and use it as you go along battling the machines!
Briffa are experts in intellectual property law and practice including contentious matters such as copyright infringement and non-contentious matters such as drafting and negotiating IP contracts. If you would like to discuss the identification and protection of your IP rights, please do not hesitate to get in touch.
